The opinion of the court was delivered by: Richard L. Price, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the printed Official Reports.
Petitioner moves to vacate parole warrant #577078 claiming that his current detention is illegal because the Department of Correctional Services ("DOCS") administratively calculated his sentence to run consecutive to an undischarged term of parole even though the sentencing judge was silent on the matter. The Division of Parole ("Division") claims that the sentence runs consecutive to the undischarged term by operation of law and, therefore, Petitioner's writ is without merit and should be dismissed in its entirety.
In deciding this matter, the Court considered the following: Verified Petition for a Writ of Habeas Corpus, Affirmation in Opposition to Petition for a Writ of Habeas Corpus, Verified Reply, Supplemental Affirmation in Opposition to Petition for a Writ of Habeas Corpus, Supplemental Reply to Return for a Petition for a Writ of Habeas Corpus (pro se), and Supplemental Reply #2 to Return for a Petition for a Writ of Habeas Corpus (pro se).
On December 8, 1993, Petitioner was sentenced as a Second Felony Offender to 41/2 to 9 years incarceration for Criminal Sale of a Controlled Substance in the Third Degree. On January 30, 2001, Justice Laura Blackburne of Queens County Supreme Court sentenced Petitioner as a Second Felony Offender to 41/2 to 9 years incarceration for Criminal Sale of a Controlled Substance on or near School Grounds and Criminal Sale of a Controlled Substance in the Third Degree. Justice Blackburne, however, was silent as to whether this sentence would run consecutive to the prior undischarged term; nor was any notation set forth on the commitment sheet. Petitioner was released to parole supervision on April 20, 2005 with a calculated maximum expiration date of October 17, 2013. On May 7, 2008, Petitioner was arrested and incarcerated under Warrant #577078 for alleged violations of the conditions of his parole. Petitioner brings the instant Writ of Habeas Corpus challenging his detention under this warrant.
Penal Law §70.25(2-a) mandates:
When an indeterminate or determinate sentence of imprisonment is imposed pursuant to section 70.04, 70.06, 70.08 or 70.10 and such person is subject to an undischarged indeterminate or determinate sentence of imprisonment imposed prior to the date on which the present crime was committed, the court must impose a sentence to run consecutively with respect to such undischarged sentence.
[Emphasis supplied]. Petitioner was sentenced pursuant to Penal Law § 70.06 as a Second Felony Offender; hence, section 70.25(2-a) applied and required that the sentence be imposed consecutive to the undischarged term. Nonetheless, when imposing sentencing on January 30, 2001, Justice Blackburne did not state on the record that the imposed sentence would run consecutive to any undischarged sentence as compelled by Penal Law § 70.25(2-a). Petitioner thus argues that because the record is silent, his sentence should run concurrent to any undischarged term citing Penal Law section 70.25(1)(a).*fn1 However, as argued correctly by Division, Penal Law §70.25(1) specifically excludes section 2-a.
Both parties agree, however, that the sentence should have been imposed consecutive to the undischarged term; they merely disagree as to whether DOCS was authorized to correct the sentence. Petitioner contends that only the sentencing court is empowered to impose sentence while Division argues that since the sentencing court lacked discretion as to whether to sentence Petitioner to a consecutive term, the sentence runs consecutively by operation of law and DOCS was simply calculating the sentence as such.
In a case parallel to the case at bar, the Third Department recently held that "DOCS had no authority to calculate . . . sentences consecutively where the court did not do so." People ex rel. Gill v. Greene, 48 AD3d 1003 (3d Dept. 2008) lv. granted, (2008).*fn2 See also Ettari v. Fischer, 54 AD3d 460 (3d Dept. 2008)(same). But See People ex rel. Correa v. NYS Div. of Parole, 52 AD3d 1251 (4th Dept. 2008) lv. denied 11 NY3d 704 (2008).*fn3 In Gill, the Third Department reached its holding without determining whether section 70.25(1)(a) applied to Petitioner's case;*fn4 rather, it found that regardless of that section, DOCS exceeded its authority when it calculated sentences consecutively when the sentencing court was silent on the issue. See Lilley v. James, 2008 WL 4922354 *3 (Sup. Ct. Madison Co. 2008).
This determination by the Third Department in Gill finds its origins in the Second Circuit decision of Earley v. Murray, 451 F.3d 71 (2d Cir. 2006) cert. denied sub nom Burhire v. Earley,U.S., 127 S.Ct. 3014 (2007); Gill at 1004. In Earley, the Second Circuit held: "The only cognizable sentence is the one imposed by the judge. Any alteration to that sentence, unless made by a judge in a subsequent proceeding, is of no effect." Earley at 75. In fact, Earley was the apparent catalyst for a significant change in New York State sentencing law because with the Earley decision came numerous challenges to the administrative imposition of post-release supervision by DOCS. Indeed, New York State sentencing practice has undergone significant change since the rendering of two Court of Appeals decisions: Matter of Garner v. New York State Correctional Services, 10 NY3d 358 (2008) and People v Sparber, 10 NY3d 457 (2008). In Garner, the Court of Appeals held that "The combined command of CPL 380.20 and 380.40 is that a sentencing judge and only the sentencing judge is authorized to pronounce the PRS component of a defendant's sentence."*fn5 Prior to the Court of Appeals decisions of Garner and Sparber, judges routinely did not impose post-release supervision under the assumption that it applied by operation of law. What followed was a massive campaign by Division to assess which cases had administratively imposed post-release supervision and to request resentencing of those cases pursuant to the newly-enacted Correction Law §601-d.
The obvious offshoot of the Court of Appeals' decisions of Garner and Sparber is that only sentencing courts and not DOCS are empowered to impose all portions of sentences, not just post-release supervision. Therefore, Division's assertion that the instant issue "is utterly distinct from, and not impacted by, the Court of Appeals' recent holding in Garner," is inaccurate. [Aff. in Opp.¶14]. Clearly, if only sentencing courts may impose post-release supervision even though no discretion exists in its imposition, then sentencing courts ...